The conclusion? The PHP files in WordPress themes must inherit the GPL, but CSS and Images do not. From the email:

The PHP elements, taken together, are clearly derivative of WordPress code.

Obviously, since many premium theme developers, including iThemes, have adopted the GPL completely for their themes, including CSS and Images, this news doesn’t make a big difference for us.

But because neither side can claim they were 100% correct, the declaration is bittersweet to those on both sides of the issue.

Those claiming that themes must be completely covered by the GPL can no longer claim that:

… the images and CSS are not [subject to the requirements of the GPL]. Third-party developers of such themes may apply restrictive copyrights to these elements if they wish.

But those claiming that they can license their themes — in their entirety — under a restrictive license seem to have been in the wrong as well. Or were they?

In the last paragraph of the email, it seems there is, at the very least, a potential loophole.

Finally, we note that it might be possible to design a valid WordPress theme that avoids the factors that subject it to WordPress’s copyright, but such a theme would have to forgo almost all the WordPress functionality that makes the software useful.

If it’s possible, though not ideal, for a WordPress theme to run independent of WordPress itself, then one must assume (at least from the wording of that paragraph) that the PHP code isn’t necessarily required to be subject to the requirements of the GPL.

Obviously, this is the first time anyone has been able to speak about the issue with authority, so this is helpful. But I’m afraid this story isn’t over yet.

I, obviously, support licensing themes (free or paid) under the GPL. But despite this latest news, I’m still very reluctant to say that the legality of the issue has been completely cleared up. There are still too many questions, and not nearly enough answers. One thing is for sure, theme authors have been adopting the GPL all over the place lately. And WordPress just launched their commercial GPL theme directory today. Perhaps the legality of all this GPL talk doesn’t even matter any more.

What do you think?

Reader Interactions

Comments

Perhaps some will adopt the model of giving away or selling a GPL theme framework with minimal CSS and images (if any at all) and then sell license restricted child themes that consist mainly of CSS and graphics. That seems perfectly legitimate to me.

Well, I didn’t say the framework would be unusable. In fact it would likely be very useable to a developer. On the other hand, a well crafted child theme with polished graphics, CSS, etc might appeal more to an end user.

Whether or not this issue is truly resolved, I think another GPL-related issue still remains: commercial theme-developers, including Brian Gardner and Jason Schuller, making a big stink about people redistributing GPL-licensed yet commercially sold themes unchanged in accordance with Freedom 2 of the Free Software Foundation’s definition of free software.

Gardner and Schuller both represent such redistribution as unfairly taking advantage of the GPL and not within its spirit even though redistribution—with or without change and with or without charge—is a clear and explicitly stated right, not some abuse or loophole. What they seem to want is something that is not actually the GPL or free software at all (according to the FSF definition).

Brian, why must you continue to sling mud around with Jason and I – it’s clear you have something against us, otherwise you wouldn’t make it a point to call us out any time you can. Here, on Twitter, or anywhere else you can stir it up.

Quite honestly I’m not going to play your game anymore – I tried discussing this on the phone with you, and it’s obvious you’re trying to prove something.

Be clear when you try to represent my point of view. As I’ve discussed many times, I know what the license allows and doesn’t. And I’m PERFECTLY entitled to say that people who take my themes, which I’ve worked 1000’s of hours on, and put it on a site and use MY BRAND to market themselves only to undercut me and misrepresent me to make a few bucks.

That doesn’t mean I want a different license, just saying that it sucks people have to work that way. And because you (or anyone else for that matter) isn’t having this happen to them, it’s very hard for me to believe that you’d be perfectly happy knowing that people are blatantly being unethical and taking money out of your pocket. (or as you call it, preventing money from going in.)

I’m all for redistribution and using my code to make a better product. I’ve never said otherwise, but do me a favor and stop running around and taking shots at us. It’s sad, really.

Unlike Brian, I am definitely not surprised to see you here once again making generalizations about Brian and myself that are absolutely not true. How can you even have an opinion about what I want or what I don’t want. You don’t know me… and if you did, you probably wouldn’t be continuing on with your little smear campaign the way you have been with both Brian and myself.

You continue to claim that I don’t know what the GPL is or that I really don’t want my themes licensed as GPL. First off, I wouldn’t just frivolously play around with my business that way. I didn’t just wake up one morning and say to myself… “hmm, I think GPL sounds cool” and switch my license over. While I believe in the overall concept of the GPL, I also believe that in specific situations these freedoms can be taken advantage of, just like any other freedom in this world.

To make your point (because I know what you are going to say), I also realize the redistribution of unmodified GPL code is well within the rights of the GPL. I am NOT arguing this point. However, I am going to stick to my guns and say that the activity I have seen in relation to my themes (and most other GPL’d themes) specifically does not help overall community in any way. Every single site I have been to (I have a list) that is redistributing my themes are doing in a way to either make a quick buck or are simply hack “warez” type sites spreading around outdated versions of my themes to as many people as they can without providing any credit whatsoever to the originating publisher.

Once… just once… I would LOVE to see a site take one or all of my themes and provide some actual VALUE to the community, by adding to them, make them better, or heck, maybe even fix a few validation errors that you seem to always point out exclusively about Brian’s and my themes. This is a MAJOR part of what the GPL is about and I have yet to see just one person step up to the plate. Correction… last week, 1 person actually did provide value to one my theme and returned it back to me for distribution in exchange for recognition on my site.

So… just to be very clear, I am not arguing the fact that redistribution of unmodified code is well within the rights of the GPL, I am merely stating the fact that certain people are misusing that freedom in ways to benefit themselves… not the community.

Brian, I am not victimizing you here no matter how much you may wish to adopt the role. Nor are you the only one with the freedom to discuss licensing issues and criticize the actions of others. I don’t see how being critical of a position constitutes slinging mud.

You keep saying you are not going to discuss things any further then flailing out with both personal attacks and sensational yet poorly supported claims nonetheless (e.g., mentioning “unethical” actions above). This does not seem productive; it only distantly addresses the issue.

I would be happy to discuss the issue at length, but you do not seem genuinely interested in a rational discussion. You seem far more interested in attacking me for daring to challenge the words that you yourself have been projecting out into the world via social media.

Dude, your view on these two developers is totally out of whack. They have stated that they know the GPL allows their themes to be redistributed and they aren’t going to and have never attacked good people for exercising their rights under the GPL. You provide no evidence that they have done what you say they have and besides that your fairly vague about everything. I’d like for you to come to the WPTavern forum and make your argument, because it’s low of you to attack people across the internet on different sites and it shows what your character is like.

The only people they have gone after are scammers, which are miss-using their companies’ trademarks and good name. They are only trying to protect their own brands, their customers, and the WordPress community. They have never gone after anyone for doing things that the GPL allows, even if the person doesn’t have good intentions or it hurts their bottom line.

I wrote a reply earlier that Nathan’s installation of WordPress seemed to have deemed too fast in following a previous reply as it displayed a “You are posting comments too quickly. Slow down.” message and discarded my reply in its entirety. Hopefully I can remember most of it.

Jason, I need not know you personally to read, consider, and respond to your public writings. What you refer to as my “little smear campaign” is simply criticism of licensing issues—fair and rational discussion. If you believe I have misunderstood or misrepresented your positions, I welcome any clarification you are kind enough to offer, but I would of course prefer for you to respond with greater decorum.

I understand that you would prefer to see redistributions incorporate changes. Wonderful. I also understand that you have your own notions about what would be best for the WordPress community, the Press 75 community, and so on. That’s fine.

However, the very fact that you categorize exercise of Freedom 2 as “misusing that freedom” (regardless of whether any particular redistribution involves money or changes) is clear evidence that you do not, in fact, agree with and support one of the most basic notions of free software in general (as defined by the Free Software Foundation) and the GPL in particular—that of redistribution unencumbered by the wishes of previous distributors. That is not—in any way whatsoever—“misusing” the GPL; it is one of the very purposes of the GPL and free software.

The issue remains that if someone wants to redistribute a theme that I have developed, they can go as far as to change attribution to make it appear as though they have developed the theme.

My work comes mainly through people seeing the work I have done, contacting me and asking for something similar. I get paid for the hours I spend developing a custom solution, rather than reselling the same themes.

What I am concerned about is that the GPL makes it legal for people to represent my work as their own (of course, they can’t legally do so with the CSS, unless I explicitly release that as GPL too – though if I do not I can forget about exposure through WP itself).

I’ll lose business because of this, and it sucks that I have no way to protect myself here – that in fact I have less of a way to protect myself than before.

I think community-driven, incremental development is a Good Thing. What I lament is that there is no way to defend against those who would seek to represent my work as their own, and effectively steal clients from me.

Of course, they could always do this before – it is trivial to edit a text file, after all. What sucks, to me, is that under the GPL this misrepresentation is legal. That doesn’t sound right to me.

One thing that wasn’t made very clear here Nathan is that the comments on the applicability of the GPL were made in relation to the classic and default themes that ship with WordPress. The PHP code in these, naturally enough, only contain calls to WordPress itself. It is entirely possible to create PHP code that does not hook into the WordPress API, but which stands alone (or which hooks into any of the third-party libraries that are included in WordPress but which are not licensed under the GPL). So, the SFLC may be right in saying that the PHP which is in those two themes should be licensed under the GPL, but that does not mean ALL PHP code used in themes needs to be GPL.

The SFLC email only addressed themes, but plugins may also need to be licensed under the GPL – or not, depending on how they interact with WordPress.

All this GPL stuff is getting really tiring. Somehow I don’t think the Codex announcement will provide any more clarity than the arguments over the past two years have 🙁

1) SFLC/FSF’s statement represents only a legal opinion. Nothing is “settled” legally until challenged – and decided – in court.

From the opinion, we can conclude:

2) WordPress themes are *not* a single work, but rather represent a *collection* of works, which must be assessed separately with respect to WordPress GPL inheritance.

This argument (that WordPress themes are a single work) seemed to form the basis for Matt’s (et al) insistence that themes – as a whole – must inherit the WordPress GPL. SFLC’s opinion seems to refute that argument entirely, thereby rendering that insistence to be specious.

From Matt’s blog post:

3) Even though CSS and images in WordPress themes to not inherit the WordPress GPL, only 100% GPL (or compatible) themes will be eligible for the theme repository and its commercial themes section.

And as has been said:

4) The matter is quite nearly moot at this point, since the vast majority of major theme developers have adopted a 100% GPL model.

The loophole that Nathan mentioned is very real, but not likely to be used.

In order to make a WordPress theme that is not GPL compliant but perfectly legal from a licensing standpoint you would have to rewrite all the front end code and use NO built in WordPress calls. No pre-existing filters or hooks, nor WordPress functions, nothing.

You would have to create a 100% custom PHP front end that returns data from the MySQL database.

The WordPress database schema and dashboard/admin could still be used to manage the data, but the front end code would have to be entirely rewritten.

I think you might have misunderstood what I meant. One could, theoretically, create a PHP file that simply redeclares all the common template tags, and have them output standard HTML, thus making the theme completely independent of WordPress itself. It could run on any PHP server. It wouldn’t be of very little use, but it could be done.

And the fact that it could be done doesn’t mean that it HAS to be done in order to render the application of the GPL invalid. The point made by the person from the Software Freedom Center was that the themes could not operate outside WordPress (or had to make function calls to WordPress in order to work), thus making them “derivative”. But, assuming that a person could make a single PHP file that redeclared the functions and call it “GPL-Free WP” or whatever, the theme could then run on THAT program. If it can run independent of WordPress, not calling functions in WordPress, then it is NOT derivative.

And that was the point made by the last paragraph from the Software Freedom Center.

My point is that no such PHP file ever need be created … the mere fact that a theme could run just fine outside WordPress, even if it is only theoretical, seems to indicate that it is NOT, in fact, necessarily a derivative work of WordPress.

But again, I want to stress that I fully support and encourage people to license their themes fully under the GPL. But that doesn’t mean I am of the opinion that they HAVE to do so.

If you wrote a theme that doesn’t use any WordPress code (functions, hooks, filters, data access, etc.), and instead displays and interacts with data in your database directly… this could also be done independent of the WordPress GPL license and would not be a violation.

@Carl,
Gotcha. Your point is definitely valid, but in that case, you would actually have to do all the work to make the theme run independent of the WP functions. In the case I described, just the potential of creating a second “program” on which the theme (unaltered) could run makes the forced GPL application invalid.

Yes, what I am describing would be a royal pain becuase you would have to do all of database interaction yourself without using any WordPress functions. It’s possible but certainly not a good idea because of the amount of work involved.

What you are describing makes perfect sense also.

But either way seems like a big hassle when you can just go GPL or stick to your guns and not go GPL.

It’s doubtful WordPress will go after anyone anyway. They just won’t promote them and some in the community will disapprove of your business model but ultimately if you have a good product people would still buy it (see Thesis).

So really the way I see it is this…

If you want promotion from WordPress and don’t want the hassle of listening to GPL zealots… go GPL.

If you don’t care about being promoted by WordPress and can deal with the haters… do what you want.

Thank you for the clarification, GPL seems like a viable solution for WordPressers at this time, although changes in licensing that will surely occur in the next decade will necessitate a shift in the attitude of designers and content owners alike.

Nathan, your block quoting seems fine other than that the quotation marks are a bit oversized.

If you read the statements carefully, you would have seen, that not all PHP files are automatically GPL’ed. Just write as example a own moster feed class inside a PHP file, and this class works completely outside the scope of WordPress too and could be integrated into any CMS system based on PHP.
With such a class only used by the Theme, this class is not automatically GPL’ed!
This is the same behavoir as for Javascript Libraries used in WP backend, they don’t get occupied into GPL whether WP is or not. They only been used and have nevertheless their own licence.
If your write a set of classes/files completely independend of WP you can license them as you wan’t it.
Doing so give you the ability that re-destribution of theme would require re-coding of those files or asking for a license to do so.
Sure, such a theme is not longer 100% GPL but it reserves also your legal properties.

Brian, why must you continue to sling mud around with Jason and I – it’s clear you have something against us, otherwise you wouldn’t make it a point to call us out any time you can. Here, on Twitter, or anywhere else you can stir it up.

Quite honestly I’m not going to play your game anymore – I tried discussing this on the phone with you, and it’s obvious you’re trying to prove something.

Be clear when you try to represent my point of view. As I’ve discussed many times, I know what the license allows and doesn’t. And I’m PERFECTLY entitled to say that people who take my themes, which I’ve worked 1000’s of hours on, and put it on a site and use MY BRAND to market themselves only to undercut me and misrepresent me to make a few bucks.

That doesn’t mean I want a different license, just saying that it sucks people have to work that way. And because you (or anyone else for that matter) isn’t having this happen to them, it’s very hard for me to believe that you’d be perfectly happy knowing that people are blatantly being unethical and taking money out of your pocket. (or as you call it, preventing money from going in.)

I’m all for redistribution and using my code to make a better product. I’ve never said otherwise, but do me a favor and stop running around and taking shots at us. It’s sad, really.

If you read the statements carefully, you would have seen, that not all PHP files are automatically GPL’ed. Just write as example a own moster feed class inside a PHP file, and this class works completely outside the scope of WordPress too and could be integrated into any CMS system based on PHP.
With such a class only used by the Theme, this class is not automatically GPL’ed!
This is the same behavoir as for Javascript Libraries used in WP backend, they don’t get occupied into GPL whether WP is or not. They only been used and have nevertheless their own licence.
If your write a set of classes/files completely independend of WP you can license them as you wan’t it.
Doing so give you the ability that re-destribution of theme would require re-coding of those files or asking for a license to do so.
Sure, such a theme is not longer 100% GPL but it reserves also your legal properties.

LOL If WP E Commerce was not GPL compliant, it wouldn’t be available in the WordPress plugin repository. I think you are mistaken the paid for upgrades of the plugin as having to be GPL which they do not. Just the plugin itself has to be GPL.

In my oppinion people releasing their themes under the GPL license and then asking to keep their promotional footer links on their themes are totally wrong, the GPL license says nowhere that promotional links must be kept.